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decided: September 19, 1973.


Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, July T., 1970, No. 1510, in case of William B. Fair, administrator of the estate of Edith I. Fair, deceased and William B. Fair v. Snowball Express, Inc., a corporation and Weiss Packing Co., Inc., a corporation, defendants, v. William B. Fair, additional defendant.


John E. Evans, Jr., with him Evans, Ivory & Evans, for appellants.

Giles J. Gaca, with him Thomson, Rhodes & Grigsby, for appellees.

Bruce R. Martin, for additional defendant, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaulding, J. Wright, P. J., would affirm on the opinion of Judge Price. Watkins and Jacobs, JJ., dissent.

Author: Spaulding

[ 226 Pa. Super. Page 296]

Appellant William Fair appeals from the denial of his motion for a new trial following a jury verdict in favor of appellees Snowball Express, Inc., Weiss Packing Co., Inc., and the additional defendant, William Fair. These trespass actions arose from a collision on March 4, 1970, involving a truck operated on behalf of the corporate appellee and a car driven by Fair. Appellant's wife, Edith I. Fair, was a passenger in appellant's car and sustained fatal injuries in the accident. Appellant suffered personal injuries. Appellant, as administrator of his wife's estate, filed suit against the two corporate appellees claiming damages under the Pennsylvania Survival and Wrongful Death Acts. The two corporations as original defendants joined appellant as an additional party defendant. Appellant Fair also sued the corporations for his own personal injuries.

[ 226 Pa. Super. Page 297]

The evidence as to which of the appellees was at fault in causing the accident was directly contradictory. The collision occurred on Route 51, a four-lane highway in Allegheny County. A concrete medial strip approximately three feet wide and eight inches high divides the two northbound and two southbound lanes. Each operator claimed that the other driver crossed the medial strip and caused the collision. Fair testified that he was traveling north at about thirty miles per hour, in the right-hand lane, in light traffic, when he saw appellees' truck in the southbound passing lane shake, jump the medial strip, and continue southward down the middle of the northbound lanes. Appellant said he swung his car to the left in an unsuccessful attempt to avoid the collision. The driver of the truck testified that he was proceeding at about forty-five miles per hour in fairly heavy traffic when suddenly appellant's car came across the medial barrier directly into his path. The truck driver said he was unable to avoid the collision and after impact came to rest straddling the medial strip, extending slightly into the northbound lanes.

Appellant argues that when an innocent passenger in one of two colliding cars is injured, and when all the evidence presented shows one or both drivers negligent, in the absence of any external causes the only question for the jury is the amount of damages and against whom they should be awarded. Appellant contends that the jury's finding was against the weight of the evidence, and that the court, sitting en banc, abused its discretion in denying his motion for a new trial. The court, in denying this motion, said that the appellant had not met the burden of proving the negligence of the defendants, and that the jury's finding of no negligence at all could be supported by the record. The appellees agree with the court, and further contend that to recover "the burden [is] on each party to

[ 226 Pa. Super. Page 298]

    prove the other was negligent and that such negligence was the proximate cause of the accident. The mere happening of an accident does not prove negligence." Morgenstern v. Kotik, 210 Pa. Superior Ct. 32, 34, 231 A.2d 874 (1967). Accord, Zeman v. Canonsburg Borough, 423 Pa. 450, 223 A.2d 728 (1966).

While this is the general rule of law in Pennsylvania, it is not applicable in all situations. In "wrong side of the road" accidents, i.e., where one car suddenly enters the lane of oncoming traffic and an accident occurs, it is too great a burden to make the injured party prove that the defendant's act was a result of his negligence and would often result in the defendant's unjustly escaping liability. To avoid this inequitable result, our courts have held that unless the defendant can explain his presence in the wrong lane, negligence can be inferred. Campbell v. ...

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